Watching Big Brother Watching You...

Over the past twenty days, the fall-out over Edward Snowden’s disclosures that the American National Security Agency [“NSA”] was engaging in bulk telephone surveillance was finally felt in the American Courts. On December 16, in Klayman vs Obama, Judge Leon of the Columbia District Court held the NSA’s spying program, through which it collected the phone records of all Americans from third-party service providers, to be “almost Orwellian” in its scope, and “likely unconstitutional”, primarily on the ground that it was a violation of American citizens’ constitutional right to privacy. On the other hand, eleven days later, in ACLU vs Clapper, Judge Pauley of the New York District Court held the same program to be entirely legal. And in between these two decisions, a special panel appointed by President Obama published a highly critical report of bulk surveillance, questioning its efficacy and recommending that it be scrapped.

How did two judges come to exactly the opposite conclusions on an identical issue? A close reading of both cases reveals that they did so by taking diametrically opposite stances on three crucial questions: one pure question of law, one mixed question of law and fact, and one question of fact. It also, I suggest, points to important issues for us to consider, as we in India move forward with the ethical, political, legal and constitutional debate over India’s own ubiquitous spying programs, the Central Monitoring System, that in its scope and content goes beyond the NSA (this essay relies, in part, on this detailed exposition of the CMS, here), and the Netra. Just last week, The Economic and Political Weekly carried an article that perhaps sums up in stark terms the breathtaking scope of the CMS. The article states:

“The new jewel in the [State’s spying apparatus’] crown is the centralised monitoring system (CMS). Every call made either from a landline or mobile phone can be listened to and its location fixed. All text messages, emails and searches on the internet can be collated and analysed. In April 2013, the United Nations’ Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression cited the Indian state’s CMS as threatening to “take communications surveillance out of the realm of judicial authorisation and allow unregulated, secret surveillance, eliminating any transparency or accountability on the part of the State”.”

While the shroud of secrecy that surrounds the CMS makes it unclear whether it is going to be operated as a bulk or a targeted surveillance system, the Netra surveillance system is certainly an example of bulk dragnet surveillance. As the Times of India reported recently, Netra is designed to work by detecting words such as “attack”, “bomb”, “blast”, “kill” etc. in real time, as they are used in texts, emails and other forms of communication. The fact that these words have a variety of innocent uses, in ordinary language and in slangs, seems not to concern the government. 

Considering that the issues in the US are similar (bulk dragnet surveillance, privacy rights and national security concerns), we in India would do well to follow the American debate, which is now already at an advanced stage. This essay, therefore, is an attempt to sum up the present state of play in light of the two conflicting rulings of Judge Leon and Judge Pauley.  

The legal issue that divided the two judges turned upon the continuing relevance of a 1979 American Supreme Court case, Smith vs Maryland. In Smith, the Court held that the installation of a pen register (used for tracking calls) on the telephone company’s property did not violate privacy rights under the Fourth Amendment. The Court reasoned that in using the telephone, subscribers knowingly and voluntarily turned over information such as phone numbers to the company, and were fully aware that it was storing them for a variety of purposes. Consequently, citizens had no “legitimate expectation of privacy” in their phone records.

Anlaysing Smith, Judge Leon in the Columbia District Court held that our relationships with our phones had changed radically since 1979.  The use of telephones for communicating and conveying information is now ubiquitous, and we store—and transmit—far, far more information about ourselves through telephones now than we did in 1979—to the point where it would be almost counter-intuitive to say that we “voluntarily” hand over our records to companies (as though there actually existed an alternative). Consequently, Judge Leon found that Smith no longer held the field, and that individuals did have a privacy interest in their phone records. Judge Pauley in New York, on the other hand, found no reason to disturb the Smith holding. The fact that the use of phones has increased, he argued, did nothing to change the nature of that usage—we are still knowingly and voluntarily handing over our records to a third party in 2013, just as we were in 1979. Consequently, he treated Smith as binding upon him, and held that there was no privacy interest implicated.  

What of India? While there has been no case directly on point as Smith (Indian cases such as Malkani, for instance, involved direct phone tapping, not storing of records), there is an analogous case. Smith vs Maryland was decided three years after the American case of US vs Miller, where the Court found—using similar reasoning—that there was no privacy interest in bank documents of a personal nature, once they had been voluntarily handed over to the bank. In 2004, however, in District Collector vs Canara Bank, dealing with an identical set of facts, the Indian Supreme Court directly considered—and rejected—US vs Miller. Holding that the right to privacy (as an offshoot of Article 21’s right to individual liberty) belonged to persons, and not places, our Supreme Court held that even after information was knowingly and voluntarily handed over to a third party, its character did not change—if there was a privacy interest in it before the handing over, that interest was not dissolved by the transfer of the information itself. In Canara Bank, therefore, contra Miller, our Court found that persons did have a privacy interest in bank documents, even after they were handed over to a bank (the third party). Precisely this logic, it seems clear, would apply to phone records being handed over to service providers. On this issue, therefore, the disagreement between the American judges seems to have already been settled by our Supreme Court in 2004—in favour of privacy.

The second disagreement between the Judge Leon and Judge Pauley turned upon the scope of the surveillance. Judge Leon found the program’s extent—that covered all calls made by Americans—“almost Orwellian”; Judge Pauley, on the other hand, argued that it was precisely the “bluntness” of this instrument that allowed it to succeed. Moreover—importantly—he denied that the government had the burden of showing that its surveillance program initiated the least possible intrusion upon privacy rights in order to achieve the goals of national security and fighting terrorism. All the government had to show was that its program was a “reasonable” way of doing so. This holding becomes crucial when considered in light of the American doctrine of “strict scrutiny” (see Grutter vs Bollinger). This doctrine requires certain kinds of governmental action—the classic example is race-based distinctions in, e.g., affirmative action programs—to pass a two-pronged test: first, the government must show that the program serves a compelling state interest; and secondly, it must show that the program is narrowly tailored—that is, no other method of achieving the same goals exists, that would infringe upon rights to a lesser extent. It was this second standard that Judge Leon implicitly seemed to expect of the government, and what Judge Pauley explicitly rejected. 

Again, what of India? In a series of privacy cases involving surveillance, the Courts have used the phrase “compelling State interest”, but have not directly cited the parallel doctrine of narrow tailoring. Nonetheless, the Courts seem to have applied it. In the famous case of Gobind vs State of MP, for instance, the Court inserted an extra requirement of “serious criminality” into a statute authorizing surveillance, in order to save it from unconstitutionality. Similarly, in two prominent phone surveillance cases—PUCL vs Union of India and State of Maharashtra vs Bharat Shantilal Shah, the surveillance guidelines (in the one case, imposed by the Court, and in the other, accepted by it as constitutional) specifically required the government to consider less intrusive methods before resorting to surveillance, and required it to intrude as little as possible to fulfill its goals. Therefore, again, there seem to be good legal reasons to believe that in the context of bulk surveillance, the government will be called upon to demonstrate that it is only through bulk dragnet surveillance—as opposed to simply targeted programs—that the goal of national security can be achieved.

This brings us to the last point at issue between the two judges. Judge Leon expressed great scepticism towards the government’s claim that the bulk surveillance program was actually necessary in fighting terrorism. He held that the government had failed to demonstrate actual evidence of plots that had been foiled or headed off because of the program. Judge Pauley, on the other hand, began his judgment with an anecdote about the 9/11 attacks, and cited a report that claimed the attacks could have been detected in advance if the program had been in action at the time. Later on in his judgment, he cited three instances where the NSA claimed that it had been able to apprehend potential terrorists thanks to the bulk surveillance program. Notably, however, these claims have been repeatedly contested. What it finally came down to, therefore, was a question of deference. Judge Leon wanted tangible, demonstrable proof of efficacy and necessity before he would hold an intrusive surveillance program legal. Judge Pauley, on the other hand, was far more deferential to the government’s own assessment of the efficacy and necessity of its program.

It is here, perhaps, that there lies the greatest threat to the constitutional protection of privacy rights in India. Historically, Indian courts have been excessively deferential in alleged national security issues (A.K. Gopalan and ADM Jabalpur spring immediately to mind). Indeed, in this article, Professors Mrinal Satish and Aparna Chandra demonstrate the Supreme Court’s “minimalist” approach in national security cases is at odds with its less deferential approach in other fundamental rights and civil liberties cases. It will be interesting therefore, to see what the Supreme Court does if—and when—the constitutional challenge to the CMS ends up in its docket. Will it take a strong and principled stance in favour of Article 21 privacy rights, and insist that the government discharge its burden of demonstrating through tangible evidence that bulk dragnet surveillance under CMS is not only efficacious, but the narrowest possible infringement of our privacy rights that serves the goals of combating terrorism—or will it, in keeping with its own tradition—accept the State’s national security claims without demurring?  

Gautam Bhatia -- @gautambhatia88 on Twitter -- is a graduate of the National Law School of India University (2011), and presently an LLM student at the Yale Law School.  He blogs about the Indian Constitution at http://indconlawphil. wordpress.com